INTERNATIONAL ENVIRONMENTAL LAW CASES

ASSIGNMENT

 WHALING IN THE ANTARTIC (AUSTRALIA V JAPAN: NEW ZEALAND

INTERVENING)

FACTS

The International Convention for the Regulation of Whaling is an international environmental

agreement signed in 1946 in order to "provide for the proper conservation of whale stocks
and thus make possible the orderly development of the whaling industry". ICRW Article
VIII(1) allows a state party to “grant to any of its nationals a special permit authorizing that
national to kill, take, and treat whales for purposes of scientific research subject to such
restrictions as to number and subject to such other conditions as the Contracting Government
thinks fit.”. Following this, Japan instituted a program in 2005 to permit scientific whaling
that included lethal “sampling” of various species (fin, humpback, and minke whales) in the
Southern Ocean Sanctuary (the Japanese Whaling Research Program under Special Permit in
the Antarctic, Phase II, known as “JARPA II”). Australia and Japan were signatories to this
convention. In June 2010, Australia commenced proceedings against Japan at the
International Court of Justice (ICJ), alleging that Japan has continued an extensive whaling
program in breach of its obligations as a signatory to the same. Australia claimed that the
whales killed by Japan was not done so for scientific purposes. Though Japan did not deny
that it was killing whales, it denied claims that it was not for scientific purposes. This was
taken to the ICJ who thus had to decide, if the whales were killed for purposes of scientific
research.

PROCEDURAL HISTORY

Australia brought the issue in hand to the ICJ in the first instance. No other forums were
approached.

ISSUES

- Whether the Court has jurisdiction over the dispute?

- Whether JARPA II falls within the interpretation of Article VIII of ICRW?
- Whether Japan violated the Secs. 10E, 7(b), and 10(d) of the Schedule?
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- Questions involved the definition of ‘scientific research’ in Article VIII of the ICRW,
a term, the meaning and scope of which were crucial to the dispute.
- Another question was whether lethal methods were necessary or reasonable with
respect to the stated scientific objectives of JARPA II

HOLDING

Addressing the first issue, the court held the case maintainable and had jurisdiction to
entertain the case based on the parties’ respective declarations under the “optional clause” in
Article 36(2) of the Court’s Statute and rejecting Japan’s argument. The question of whether
JARPA II falls within the interpretation, the court observed that although Article VIII gives
discretion to a State party to the Convention to reject the request for a special permit, whether
the killing, taking and treating of whales pursuant to a requested special permit is for
purposes of scientific research cannot depend simply on that State’s perception. It found that
the scientific research requirement of Article VIII was a goal in itself, distinct from
competing interpretations of the Convention’s object and purpose.

The Court ultimately distinguished between “scientific research,” which it found unnecessary
to define, and the requirement that a program benefiting from a permit be destined “for
purposes of” scientific research. It then turned to the question of whether it was for purposes
of scientific research that lethal methods were used. To answer that question, it examined
whether the programme’s design and implementation were reasonable in relation to achieving
its stated research objectives. It was further concluded that the Japan was not authorised for
the killing and taking of whales in connection with JAPRA II. The case was decided 12-4
against Japan, because the permit for JARPA II did not comport with the requirements of
Article VIII. Hence, it was a not an exception.

DISSENTING OPINION OF JUDGES

Dissenting opinions were appended to the judgment by Judges Owada, Abraham, Bennouna,
and Yusuf.

Judge Owada, in his dissent states that his disagreement lies with the understanding of the
Court on the basic character of the International Convention for the Regulation of Whaling,
with the methodology the judgement employs for interpreting. In Judge Abraham’s dissenting
opinion, he states that while he agreed with the operative paragraph of the judgement
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regarding jurisdiction, he was not convinced with the reasoning followed by the court to
reach that conclusion. Judge Abraham believed that when conditions are satisfied, even when
parties do not have overlapping claims to maritime areas concerned, the reservation should
have applied. In the dissenting opinion of Judge Bennouna, he states that he does not agree
with the interpretation of the provisions of the ICRW. Judge Bennouna emphasizes that the
launch of JARPA was a means of making good the lack of scientific data, particularly as
regards whales’ diet, previously obtained under the commercial whaling programme. Judge
Bennouna deplores the fact that the Court undertook a detailed analysis of sample sizes,
illustrated with tables and graphics, which ultimately resulted simply in a finding of concern
as to the reasonableness of the design of JARPA II in light of its stated aims. In Judge
Yusuf’s dissenting opinion, he expressed doubts as to the legal correctness of the reasoning
of the court and its conclusion regarding to conformity to ICRW. The legal criteria that
should have been considered are those of Article VIII of the convention and the guidelines
for the application for the same. According to him, Article VIII constitutes an exception to
the regulatory régime established by the Convention for commercial whaling, but it is not
outside the scope of the ICRW. Nor is the discretionary power granted to States parties to
issue a special permit for purposes of scientific research unrestricted.

ANALYSIS

The court concluded that Japan had breached the provisions of the Convention as its activities
did not come under the exception stated in the ICRW such as the moratorium on commercial
whaling and factory ships and prohibition on commercial whaling. Most of the judges tried to
discuss the objects and purpose of the Convention to determine Japan’s obligations.
However, the issue on good faith was not decided as there was a divide in opinions and was
sidestepped. The ICJ judgment upheld Japan’s right to continue to issue permits under Article
VIII of the ICRW and Japan now appears set to test the scope of the ruling.

 TRAIL SMELTER CASE (UNITED STATES V CANADA)

FACTS

This case relates to the emissions made by the Tail Smelter located in British Columbia since
1906, which was owned and operated by a Canadian corporation. The resultant effect of from
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the sulfur dioxide from Trail Smelter resulted in the damage of the state of Washington
between 1925 and 1937. Here a rural community of farmers existed who claimed damages
from the waste emitted by the smelter. The Canadian company that smelted zinc and lead was
emitting Sulphur Dioxide which caused injury to plant life, forest trees, soil, and crop yields
in Washington State. This led to the United States suit against the Canada with an injunction
against further air pollution by Trail Smelter.

PROCEDURAL HISTORY

The first people to bring suit against the smelter at Trail were those living in the vicinity of
the factory. Local Canadian farmers sued Consolidated Mining and Smelting Company
(COMINCO) for damaging their crops.  This led to the official petition by the farmers and
landowners of Washington in 1927 for state and federal support against the smelter, claiming
the smoke was damaging United States lands. In 1927 the state department proposed to
Canada that the case be referred to the International Joint Commission (IJC)

ISSUES

- Whether it is the responsibility of the State to protect other states against harmful acts
by private actors from within its jurisdiction at all times?

HOLDING

The Tribunal held that the damage had been inflicted between the years 1932 and 1937.
Canada was ordered to pay an indemnity of 78,000 dollars as the ‘complete and final
indemnity and compensation for all damage which occurred between such dates’. The
evidence presented by the experts and witnesses were not sufficient for the Tribunal to
confidentially establish the cause of damage. The Tribunal concluded that there was damage
due to fumigations. But the degree of the causing factor and its method was not completely
understood. The tribunal did not get suffiecient information on this regard and hence
extended its decision till data could be procured from testing of injury over three growing
seasons. Among these tests, there was a study of smoke control in terms of wind directions
and velocity, atmospheric temperatures, lapse rates, turbulence, geotropic winds, barometric
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pressures, sunlight and humidity, and atmospheric sulphur dioxide concentrations. The total
estimated cost the company would have to pay to comply with this regime amounted to $20
million. For this reason, the United States would be paid 7,500 dollars for the costs of
investigation. The Tribunal claimed that the smelter had caused no damage since 1937 and
would not need to pay the farmers any more compensation.

ANALYSIS

This case is a watershed judgement in terms of international environmental law as it

established a duty on a state to prevent any private party from within its jurisdiction from
causing pollution in another state. The matter of transboundary pollution was first discussed
in this case. It also came to establish 2 principles, called the Trail Smelter principles:

(1) The state has a duty to prevent transboundary harm, and

(2) The “polluter pays” principle, which holds that the polluting state should pay
compensation for the transboundary harm it has caused.

It can be argued that there was a shortcoming of the decision because it established a
paradigm of allowing a company to pollute as long as it paid the price. It could also be
counter-argued as an appropriate and fair decision because it preserved economic interests
while ending the problem that had been presented.        

 PULP MILLS CASE (ARGENTINA V URUGUAY)

FACTS
Argentina and Uruguay signed a Treaty called the Stature of the River Uruguay, which was
shared at its borders. This was signed for the purpose of establishing the joint machinery
necessary for the optimum and rational utilisation of that part of the river which constitutes
their joint boundary. On 4th May 2006, Argentina instituted proceedings against the state of
Uruguay for breaches of obligations as stated in the 1975 Statute. Uruguay had built two Pulp
Mills on the borders of the River Uruguay, in violation of the obligatory prior notification and
consultation procedures as prescribed by the Statute. Argentina also contended that this
construction of the pulp mills has led to the deterioration of quality of soil and water in the
borders.
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PROCEDURAL HISTORY

The matter was taken to the ICJ by Uruguay in the first instance. No other forums were
considered. Two Public Hearings were held on 8 th and 9th June, 2006 for the indication of
provisional measures to be used by exercising Article 41 of the Statute.

ISSUES

- Whether, Uruguay, in constructing the two Pulp Mills violated the Statute of River
Uruguay by not communicating the presence of the mills as prescribed the Statute?
- Whether the two Pulp Mills constituted a risk to the environment surrounding the
river?
- Whether the blockade which was arranged by a group of Argentine Citizens is liable
for action under Article 41 of the Statute?

HOLDING

With regard to the first issue i.e issue of blockade of International Bridge between Argentina
and Uruguay, the court found that the blockade was not cause enough to invoke the powers
prescribed under Article 41 of the state. With regard to the further issues, the court found that
Uruguay had constructed the two Pulp Mills in violation of the mechanism for prior
notification and consultation laid down by Articles 7 to 13 of the Statute. These Articles state
that such information must be provided to The Administrative Commission of the River
Uruguay (CARU) which is a body established under the Statute for the purposes of
monitoring the river, including assessing the impact of proposed projects on the river. In the
issue of environmental impacts caused by the Mills, the Court held that, “no conclusive
evidence in the record to show that Uruguay has not acted with the requisite degree of due
diligence or that the discharges of effluent from the Orion (Botnia) mill have had deleterious
effects or caused harm to living resources or to the quality of the water or the ecological
balance of the river since it started its operations in November 2007”.

DISSENTING OPINION
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Judges Al-Khasawneh and Simma append a joint dissenting opinion to the Judgment of the
Court. In their dissent, they believed that they were not in a position to assess the evidence
submitted by either party as to whether there has been a breach of the 1975 Statute and that
such fact intensive cases with a complex scientific component require the Court to go beyond
its traditional methods of fact-finding. The Court should have made full use of the various
possibilities made available to it under the Statute and Rules and understood the innovative
and progressive character of the Statute. Judge ad hoc Vinueso also had a dissenting opinion,
separate from the above. Judge Vinuesa did not agree with the view of the relationship
between procedural obligations and substantial obligations and the nonexistence of a “no
construction obligation” once the parties to the 1975 Statute failed to reach an agreement
under Article 12.

ANALYSIS

The Court concluded that Uruguay had not breached any substantive obligations but only a
few procedural aspects of the Statute. It found that the Pulp Mills in itself were not a harm to
the environment but with an existing treaty between two States, procedural aspects must also
be followed strictly. Although assessing obligations under a specific Statute, the judgment
provides guidance to any entity whose business potentially has a cross-boundary
environmental impact, as to the requirement for impact assessments and the way in which
environmental standards are assessed in the event of a dispute. National courts and
international tribunals will no doubt look to the jurisprudence of the ICJ in this regard.

 GABCIKOVO NAGYMAROS PROJECT CASE (HUNGARY v. SLOVAKIA)

FACTS

In 1977, a Treaty was signed by Hungary and Slovakia with the purose of building and
operating a system of locks along the Danube River made up of a dam, reservoir,
hydroelectric power plant and flood control improvements. However, this purpose was not
fulfilled as the political atmosphere of both countries were shifting. Hungary paused works
and left the project. In reaction to this, Slovakia dammed the river without letting it flow to
Hungary. No negotiations were fruitful. Hungary gave notice of termination to the Treaty.
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Slovakia and Hungary however came before the I.C.J. for resolution after disputes arose
between them. The dispute being whether Hungary was allowed to abandon the project and
not respect the treaty by citing the reason of doctrine of impossibility of performance. This
was brought before the ICJ. The Court was also requested to look into the fact that the
damming of the river had been agreed to only on the ground of a joint operation and sharing
of benefits associated with the project, which Slovakia had unlawfully and unilaterally
assumed control of post the sudden abandonment of Hungary.

PROCEDURAL HISTORY

Before approaching the Internation Court of Justice, the two countries had tried negotiations
but this did not succeed. Hence, it was brought in front of the ICJ in 1993.

ISSUES

- Whether it Hungary is justified to abandon its part of the project on the grounds of
impossibility of performance?

- Whether Slovakia deprived Hungary’s right to the use, development and protection of the
Danube River equally and reasonably?
- Whether International Environmental Law now consists of general obligations of states to
ensure their internal/national activities do not affect the environment of other states/areas
outside their national control?

HOLDING

The majority held that it was not acceptable nor justified on Hungray’s part to abandon
works. This was dissented by Judge Oda and others . The court also held that Slovakia had
deprived the rights of Hungary to an equitable and reasonable share of the Danube River.
This was dissented by Judge Vereschetin who believed that Slovakia did not commit a crime
by deciding to continue damming the river. The court also held that International
Environmental Law did consist of general obligations to ensure environmental protection.

ANALYSIS

The court held that Hungary was not justified in invoking doctrine of impossibility of
performance. New developments in environmental law were not completely unforeseen.
Where the common political and economic conditions were not so closely related to the goals
and purpose of the treaty as to constitute an essential basis of the consent of the parties, there
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was no fundamental change of circumstances. It is only in exceptional cases that the plea of
fundamental change of circumstance may be applied. The court also held that Slovakia failed
to respect the proportionality that is required by international law. In order to achieve most of
the Treaty’s objectives, common utilization of shared water resources was necessary.
Slovakia should not have proceeded without Hungary’s permission. Hungary was to
compensate Slovakia for the damage sustained by Czechoslovakia and by Slovakia on
account of the suspension and abandonment by Hungary of works for which it was
responsible, whereas, again according to the Judgment of the Court, Slovakia was to
compensate Hungary for the damage it had sustained on account of the putting into operation
of the dam by Czechoslovakia and its maintenance in service by Slovakia.

 SOUTHERN BLUEFIN TUNA CASE (NEW ZEALAND V. JAPAN;

AUSTRALIA V. JAPAN)

FACTS

The Southern Bluefin Tuna (SBT) is a severely depleted species. The main areas to engage in
fishing for SBT are Australia, Japan and New Zealand. The three States realized the dramatic
reduction of SBT and in May 1993 they signed the Convention for the Conservation of
Southern Bluefin Tuna. The main purpose of the CCSBT is to decide measures of
management for the SBT and the total allowable catch that may be made. There was a total
allowable catch of 11,750 tonnes. In 1998, Japan decided to start an Experimental Fishing
Program because of their uncertainty in the SBT stock assessment. New Zealand and
Australia rejected the program because it is outside the framework of the Commission. The
two States submitted the dispute to arbitration and filed a request for provisional measures
with ITLOS against Japan.

ISSUES

- Whether ITLOS has the jurisdiction to hear the case?

- Whether the Japanese program is a violation of its duty as prescribed in the SBT
treaty?
- As consequence, whether the Japanese program is liable to come to an end?
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HOLDING

With regard to the jurisdiction issue, it was held that the tribunal did have jurisdiction to hear
the case as Article 16 of the CCSBT constitutes an agreed list of choices for the pursuit of
peaceful settlement. The UNCLOS and CCSBT are intertwined in that it implements broad
principles set out in UNCLOS. Therefore, this case did have jurisdiction to be heard.
With regard to the other issues, The Tribunal prescribed measures holding that Australia,
New Zealand and Japan shall cooperate, and not take any action to aggravate or extend the
disputes given to the arbitral tribunal and don’t take any action that would prejudice the
carrying out of its decision. Further it was held that the three countries will not, unless agreed
upon, exceed their initially accepted catch rate. It was also held by the tribunal that the three
countries would be barred from any experimental fishing programmes which involved the
endangered BFT, except with the agreement of the other parties or unless the experimental
catch is counted against its annual national allocation as prescribed in subparagraph (c) of the
treaty.

DISSENTING OPINION

Judge Eiriksson dissented with the tribunal holding that the parties "shall each ensure that no
action is taken which might aggravate or extend the disputes submitted to the arbitral
tribunal". This was not because he disagreed with the concept that parties to a dispute should
take measures to avoid aggravating the dispute pending its settlement by judicial means, but
rather because he felt that the measure was too general and unclear for it to be binding in
international law. Judge Vukas, dissented with the measures that were requested stating that
there was no urgency of the situation as portrayed by New Zealand and Australia. According
to Article 290 of the Convention, only this sort of urgent situation would warrant the tribunal
to prescribe provisional measures.

ANALYSIS

This is a case that portrayed the importance of the precautionary principle. It has held that no
party shall take any actions which could potentially aggravate the risky situation that they
have found themselves in. The whole power of the tribunal to provide these provisional
measures arises from the urgency of the situation which is justified by the drastic drop in the
number of BFT in the past years. The tribunal also took into account the fact that there exists
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scientific ambiguity with respect to the life cycle of the stock. Since there exist different
opinions as to whether the threat is imminent, precaution was rationale sought for the
judgement. The CCSBT was also instrumental as any treaty would be thoroughly nit-picked
upon violation of it. Though there were two judges who dissented on the matter, the
overwhelming assent speaks for itself as in matters such as this where an ecosystem and the
existence of a species is at question, the precautionary and preventive principle approach is
warranted. It seems to be very hard to develop workable policies in the area of fishery
management which means that the disputes can worsen and many more cases will develop.
This case was important because it shows the importance of cooperation and negotiation in a
regional organization.